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2014 DIGILAW 1230 (JHR)

Gour Chandra Gorai v. State of Jharkhand

2014-12-10

RONGON MUKHOPADHYAY

body2014
ORDER Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for O.P. No. 2. 2. In this application, the prayer of the petitioners is for setting aside the order dated 17.07.2010, passed in Criminal Revision No. 80/2010 by the learned Additional Sessions Judge, Fast Track Court No. III at Dhanbad, by which the revision application preferred on behalf of the petitioners against the order dated 25.01.2010, passed by the learned Judicial Magistrate, 1st class, Dhanbad in C.P. Case No. 416/2003 had been dismissed. 3. The prosecution story as would appear from the complaint case bearing C.P. No. 416 of 2003 is that one Nimai Gorain (accused no. 7), who happened to be relative of the complainant, informed the complainant that his son Sumanto Gorain had come from Kolkata and requested him to accompany him for going to his inlaws house at village Chhota Ambona. It is alleged that both of them had gone by motorcycle and on return Sumanto Gorain asked Nimai Gorai to stop the vehicle, at which he got down and fled without disclosing his destination. It is further alleged that on such information when the complainant (O.P. No. 2) went on search of his son, he spotted the dead body of his son lying near the railway track. In the complaint petition, it was also asserted by the complainant that with respect to the self same incident, he had lodged a First Information Report being Dhanbad G.R.P. Case No. 80 of 2002. 4. The complaint was filed on 16.04.2003, which was sent to the police for registering an FIR under the provisions of Section 156(3) of Cr.P.C. It appears that in the First Information Report instituted by the complainant (O.P. No. 2) i.e. Dhanbad G.R.P Case No. 80 of 2002 after investigation, police had submitted chargesheet against the sole accused Nimai Gorai and after commencement of the trial witnesses were examined and subsequent to the examination of P.W-6, an application had been filed by the learned APP under the provisions of Section 319 of the Code of Criminal Procedure praying therein for issuance of summons as against the petitioners of the present case as these petitioners as per the prosecution version were instrumental in causing the death of Sumanto Gorain. The learned trial court passed an order on 6th December, 2004, whereby and whereunder the application of the prosecution under section 319 of Cr.P.C. was allowed and summons were issued against the petitioners of the present case, which was however challenged by the petitioners in this Court in Cr.M.P. No. 129 of 2005. This Court after considering the entire facts of the case passed an order on 9.1.2009, in which the order dated 6th December, 2004 summoning the petitioners under Section 319 of Cr.P.C. was quashed and the learned trial court was directed to proceed with the trial against the existing accused expeditiously. 5. It appears that C.P. Case No. 416 of 2003 was filed on 16.04.2004 but no First Information Report was registered as was directed by the learned Magistrate, which resulted in the said complaint case being transferred under Section 192 of the Code of Criminal Procedure for enquiry and trial. 6. In course of enquiry, the witnesses arrayed in the complaint petition were examined and after enquiry vide order dated 25.01.2010, cognizance was taken against all the accused persons including the petitioners for the offence under Sections 302 and 120 B of the Indian Penal Code. 7. Aggrieved by the order dated 25.01.2010, passed under Section 204 Cr.P.C., the petitioners herein preferred a revision application being Cr. Revision No. 80 of 2010, which was, however, dismissed by the learned Additional Sessions Judge, FTC-III, Dhanbad, vide order dated 17.07.2010. 8. Learned counsel for the petitioners while assailing the impugned order dated 17.07.2010 passed in Cr. Revision No. 80 of 2010, at the very outset submitted that neither of the courts below had applied their judicial mind while coming to the conclusion that a prima facie case has been made out against the petitioners for the offence under sections 302 and 120 B of the Indian Penal Code. He further submitted that the application under section 319 of Cr.P.C. was quashed by this Court in Cr.M.P. No. 129 of 2005 and the oblique motive of the respondent no. 2 would be evident from the fact that after institution of the complaint case, he had remained silent all along and only after the order was passed by this Court in Cr.M.P. No. 129 of 2005, efforts were made by the respondent no. 2 to revive the complaint case, which was instituted in the year 2003. 9. 2 would be evident from the fact that after institution of the complaint case, he had remained silent all along and only after the order was passed by this Court in Cr.M.P. No. 129 of 2005, efforts were made by the respondent no. 2 to revive the complaint case, which was instituted in the year 2003. 9. Learned counsel for the petitioners has drawn my attention to the fact that at the time of enquiry, the same set of witnesses, on whose evidence summons were issued by the learned trial court in Dhanbad Rail P.S. Case No. 80 of 2002, were examined and the learned Magistrate taking cognizance on 25.01.2010 did not consider this fact and as such the petitioners cannot be made liable for being prosecuted time and again for the same set of allegations. 10. Learned counsel for the informant-opposite party no. 2, appeared and submitted that although the application under section 319 of Cr.P.C. for summoning the petitioners to face trial was quashed by this Court on 9.1.2009 in Cr.M.P. No. 129 of 2005 but that does not put a hindrance on the learned court below to take cognizance on the complaint made by the respondent no. 2. He further submitted that adverse inference against the respondent no. 2 could have been drawn if subsequent to the order dated 9.1.2009 passed in Cr.M.P. No. 129 of 2005 a fresh complaint would have been filed but the impugned orders have been passed on a complaint petition, which was filed in the year 2003 by the respondent no. 2 and which was subsequently revived. In this context, he has referred to a judgment reported in 1996 Supreme (SC) 27202-Randhir Singh Rana Vs. State (Delhi Administration), and has further submitted that in the facts and circumstances of the case, no interference under section 482 Cr.P.C. is necessary with respect to the order impugned. 11. Learned APP appearing for the State submitted that the impugned order dated 17.07.2010, passed in Cr. Revision No. 80 of 2010 does not suffer from any illegality and thus the present application is fit to be dismissed. 12. 11. Learned APP appearing for the State submitted that the impugned order dated 17.07.2010, passed in Cr. Revision No. 80 of 2010 does not suffer from any illegality and thus the present application is fit to be dismissed. 12. After hearing the learned counsels on behalf of respective parties and on perusal of the records, it appears that the complaint petition which was filed in the year 2003 being C.P. Case No. 416 of 2003 was kept pending and it revived only after the order was passed by this Court in Cr.M.P. No. 129 of 2005. The witnesses, on whose evidence the application under section 319 of Cr.P.C. was allowed by this Court, were the same set of witnesses , who have been examined in the complaint case and on the basis of their evidence, cognizance had been taken by the learned Magistrate vide order dated 25.01.2010, which was affirmed in Cr. Revision No. 80 of 2010. When this Court in Cr.M.P. No. 129 of 2005 quashed the order dated 6.12.2004 allowing the application under section 319 of Cr.PC., it took into consideration that materials and evidences annexed with the petition did not provide any clinching material or cogent evidence, which can be said to be sufficient for summoning the petitioners for facing trial with respect to the said offences. Those witnesses whose evidence formed the backbone for the order of issuance of summons under section 319 Cr.P.C. and whose version has been disbelieved by this Court in Cr.M.P. No. 129 of 2005 are the same set of witnesses in C.P. No. 416 of 2003 and therefore in such circumstances and regard being had to the same set of facts arising both in the police case as well as in the complaint case, no cognizance can be taken in view of their subsequent evidence in course of enquiry in the complaint case. Learned Magistrate while taking cognizance and the Revisional Court while affirming the order taking cognizance did not rationalise the facts and circumstances of each case, nor applied the test of 'sameness' to find out whether Dhanbad Rail P.S. Case No. 80 of 2002 and C.P. Case No. 416 of 2003 relate to the same incident and to the same occurrence with the same set of evidence. 13. 13. The judgment relied by learned counsel for O.P. No. 2 as referred above, in my considered opinion, is not applicable to the facts and circumstances of the present case. 14. In view of discussions made above, the order dated 25.01.2010, passed by the learned Judicial Magistrate, 1st class, Dhanbad in C.P. Case No. 416/2003 is quashed and set aside. Consequently, the order dated 17.07.2010 passed in Cr. Revision No. 80 of 2010 by the learned Additional Sessions Judge, Fast Track Court No. III at Dhanbad, is also quashed and set aside. 15. This application is accordingly allowed. Application allowed.